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Elder Law
University of Georgia School of Law
Love, Sarajane N.

ELDER LAW
LOVE
FALL 2012
 
 
Class 8/15/12
1.       What age is old?
1.       A lot of who we think is old is about those we associate w/ being old. (family)
2.       What about the demographics?
1.       What about the fact that women live longer?
1.       Financial implications: Women didn't always work, so don't have pensions and SS is affected.
1.       Social security may come from spousal benefits, but they are less than is woman had worked.
1.       Sidebar: Think about the fact that women live longer and pull social security for longer. Is it wrong that women benefit more? What about minorities who have lower life expectancy and don't benefit as much? Should these things be factored in?
2.       Retirement savings may be low, and depleted by the longevity of women.
3.       Annuitization
3.       What do we owe the elderly, if anything?
4.       p. 21 Your community includes elderly individuals who are ill nourished. What, if anything, should gov. give them?
1.       Ill nourished doesn't necessarily mean they don't have income. Maybe they make bad choices in buying food or maybe they can't physically go out and get food?
2.       Which options most preserve their autonomy?
5.       Video: Aging 101 – Georgia
1.       -training
LEGAL PRACTICE AND ETHICAL ISSUES  Class 8/22/12
1.       Elder Law Practice considerations
1.       Firm structure p.37
1.       Trad'l firm
1.       Practices trusts and estates and financial and property management.
2.       Clearing house
1.       Offers expertise on community and social-service resources in addition to trad'l legal assistance.
2.       Usually includes a social worker or paralegal.
3.       Umbrella firm
1.       Provides legal and non-legal services.
2.       Provides housing advise, transportation.
4.       Multidisciplinary Practice  p.38
1.       Accountants, Lawyers, Financial Advisors
2.       Can handle issues for clients beginning to end.
3.       Resistance from ABA as lawyers get integrated into other disciplines b/c worried abt diminishing role of lawyers.
2.       Often involves social workers.
3.       Limited Purpose, Discrete Task Representation
1.       Client wanting help w/ just one legal issue. Like applying for subsidized housing.
2.       Unbundling legal services so as to provide legal assistance to more middle class, low income clients.
3.       Factors:
1.       Whether the client can solve the problem better with discrete task representation than independently;
2.       Whether the service will actually result in a solution to the problem; and
3.       What to do if discrete task representation does not solve the problem.
2.       Counseling Older Clients
1.       Setting considerations
1.       Accessibility (handicap accessible, handrails, close to bus line)
2.       Lighting
2.       Dealing with Older Clients
1.       Making things easy to read (large type, spaced).
2.       Special telephone considerations for the deaf.
3.       Communication might take longer.
1.       May communicate slower, may want to meet often, may communicate by letter instead of phone or email.
4.       Being sure the client is hearing you. (May be hard to tell they hear what you're saying.)
1.       Ask questions of client that verify that they are hearing you.
2.       Ask open ended questions requiring them to indicate understanding.
5.       Same consideration goes for affect of medications.
6.       Follow up w/ written memorandum confirming what you talked about.
7.       Be cognizant of the experience of an older person.
1.       Elderly clients may fear own mortality or feel anger, guilt, or regret at their experiences and behavior.
3.       Ethical Issues w/ Elder Clients
1.       Who is the client?
1.       Conflicts of interest
1.       Btw family and older person.
2.       p.49 Example of children coming to town during holidays and brings parent to office with them.
1.       Does parent want to be there, or is this influence of the children? Parent didn't say much.
2.       Seems like there are conflicts of interests are here, b/c don't have much input from parents.
3.       Try to get private conversation w/ the parent. The client here is the parent. B/c just want things in interest of the parent, don't have to do joint representation w/ children. Need to be very clear w/ adult children that the parent is the client.
3.       Suppose instead of parent living in community, an adult child is a longstanding client of yours and brings the parent to see you to get will, power of attorney w/ both benefiting adult child and billing adult child.
1.       Much harder here to tell the adult child that the parent is the client. Still can't call this joint representation either.
1.       Note, MR 1.7 req client to consent to another paying legal bill.
2.       This is to prevent compromising your loyalties by buying you.
4.       Elder law is not adversarial, so hard to apply some of the more ethically related Model Rules of Ethics.
2.       The legal duty implicated where a lawyer has a conflict of interest is MR 1.7.
3.       In re Guardianship of Lillian P. p.51 (Lawyer representing Mother and Son.
1.       Lillian has guardian of person, guardian of property, guardian ad litem, and Cavey.
2.       How could Cavey believe it was not a conflict of interest to represent both son and Lillian?
1.       Cavey had co-counsel to monitor whether there is a conflict of interest.
1.       Remember though that Cavey is Lillian's atty and isn't suppose to act in her best interests, but supposed to do what client asks.
2.       Cavey had Lillian sign Waiver of Conflict.
1.       Lillian didn't have capacity and Cavey didn't file waiver w/ court.
4.       Confidentiality and Withdrawal p.58
4.       Capacity of Elder Clients p.63
1.       Varies depending on context and difficulty of task.
1.       E.g. how much you need to comprehend, how difficult to understand.
2.       Medical testimony may be helpful, but not controlling.
2.       Capacity requires:
1.       Possession of a set of values and goals;
2.       Ability to communicate and to understand information; and
3.       Ability to reason and to deliberate about one's choices.
3.       Hypo: Suppose elderly client comes in and says that their conservator (guardian of property) is stealing their property. At some point it occurs to you that this person is delusional. Where do you go from here? What can you do ethically?
1.       Try to make an assessment of her capacity by asking thorough questions.
1.       Remember to make assessment against the background of a person's life.
2.       Strange decisions may make sense to them.
1.       p.64 “Is it Personal Autonomy or a Personality Disorder?”
4.       At what point can you consult w/ outside sources on a client's capacity?
1.       Confidentiality and Incapacitation. p.66
1.       Rule 1.14 Say can seek appointment of guardian, protective services, or guidance from an appropriate diagnostician, but don't say when.
INCOME MAINTENANCE
1.       OASDI (Old-age, Survivors, Disablility Insurance)
1.       Who gets it?
1.       Eligible workers who are retired or disabled;
2.       Dependents of retired or disabled workers; and
3.       Surviving families of deceased workers.
2.       Meant to provide supplement in retirement.
1.       In addition to personal savings, pensions, income from assets (interest and dividends), and public assistance (low income, only 1% of income of elderly).
3.       Principles of Social Security   p.144
1.       Entitlement to workers who paid SS wage taxes.
1.       Paid to those who paid into the fund, rather than those who need income.
2.       Designed to be floor of protection, not complete source of retirement income or total replacement of earnings lost upon retirement.
3.       SS is an uneasy balance btw goals of social adequacy and individual equity.
1.       Now more frequentlyy characetrized as social welfare program and less frequently as retirement insurance.
4.       Level of benefits is related to the amount of wage taxes paid.
1.       Higher the income of the worker, the greater the contribution of wage taxes, and the greater the benefits to be paid to worker upon retirement.
4.       Structure of Funding
1.       Those in a covered job are taxed on portion of wages and Employer matches the EE contribution.
1.       EE pays FICA of 6.2% [Currently dropped to 4.2%].
2.       ER pays a little bit more than this.
2.       Most goes to pay current beneficiaries.
3.       Surplus in wage tax is loaned to Federal gov to help balance budget.
1.       Invested in low interest gov securities.
2.       This is the so called “trust fund”.
4.       Takes in more wage tax than it puts out. (1983 reform)
5.       Individual yearly contributions are capped. (About $106,000 currently)
1.       Changes depending on whether retirees get a cost of living adjustment (COLA) as a result of the consumer price index.
5.       Eligibility
1.       Amount received depends on earnings record.
1.       Get SSN account to which contributions are credited.
2.       Can inspect to ensure accuracy, but S

e beneficiary was age 60 or older when remarried.
2.       If ex-spouse beneficiary had more than one marriage lasting 10 years and had not remarried before age 60, SS will automatically calculate the maximum benefits by comparing what the divorced spouse would be entitled to on own earnings record vs respective earnings of former spouse.
5.       Benefits to ex-spouse do not affect rights of worker.
3.       Dependents of Disabled or Deceased Workers  p.161
1.       Eligible if:
1.       Unmarried child under age 18 (19 if enrolled f/t in elementary or secondary school)
2.       Disabled or deceased worker also eligible for benefits.
3.       Exceptions:
1.       Paid to child regardless of age if child disabled(unable to engage in gainful employment) before age 22.
1.       Continue for as long as child is disabled.
2.       Paid to dependent grandchildren and great-grandchildren whose parents are disabled or deceased.
6.       Benefit Computation  p.162
1.       Calculation at 20 CFR §§ 404.201-.290
2.       Based on worker's Primary Insurance Amount
1.       PIA based on 35 highest earning years indexed for inflation(as determined by the Consumer's Price Index).
7.       Application for Social Security Benefits  p.164
1.       Apply at SS Administration office or online.
2.       If mentally or physically incapable of signing, a legal guardian, caregiver, or interested individual may complete and sign it . 20 CFR §§ 404.610-404.612.
3.       Entitled to have an atty or other individual assist in dealing w/ the SSA.
1.       This individual must apply for SSA appointment as the claimant''s rep.
4.       Claimants have the burden of establishing eligibility for benefits.
1.       Must prove identity, age, family relationship, dependency, or death of worker.
8.       Representative Payees (rep-payee)  p.165
1.       Representative gets payments if claimant incapable of managing payments.
2.       Has legal obligation to use benefits to provide for claimant's basic support.
1.       Once those needs met, can use benefits to support the dependents of the claimant or pay past debts.
2.       If CLMT institutionalized, benefits used to reimburse the institution for cost of care.
3.       Must make periodic accountings to the SSA of how the benefit check has been spent.
4.       If depositing in bank, must be kept in separate acct for benefit of SS recipient.
5.       If used improperly, CLMT can sue rep-payee in state court, or SSA can request office of the Inspector General bring civil suit or criminal prosecution against the rep-payee.
9.       Effect of Overpayment  p.165
1.       Suspend benefits until recovered or seek refund.
2.       Claimant can appeal.
3.       SSA cannot recover for overpayment if:
1.       Claimant was not at fault AND
1.       Recovery would either be “against equity and good conscience” or would “defeat the purpose of the Social Security Act.” 42 USC § 404(b); 20 CFR § 404.506
10.    Taxation of Benefits
1.       Benefits may be reduced by imposition of federal income tax.
2.       Higher income beneficiaries are subject to a two-tiered tax on benefits.
3.       First tier: If have “income” (as defined in IRC § 86(b)) in excess of $25,000 for a single person or $32,000 for a married couple filing jointly, must include one-half of the excess income over these amounts in their gross income.
4.       The second tier: Begins at income levels of $35,000 for single and $44,000 for joint.
1.       85% of amounts in excess of these figures are added to the taxpayer's gross income for purposes of calculating the rate of taxation.
5.       States can also apply their own rules to taxing SS benefits.